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Solid record-keeping is the key! Document pay criteria to shoot down EPA cases

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in Discrimination and Harassment,Human Resources

Employers are free to pay em­­ployees different rates based on training, experience and education. You’ll be fine as long as you can justify your pay criteria.

However, an employee’s sex is never a legitimate differentiator.

Recent case: John Hicks went to work for Concorde Career College as an admissions counselor. When he found out that two female admissions counselors hired at the same time began with higher starting salaries, he suspected sex discrimination and sued under the Equal Pay Act (EPA).

The college pulled out its hiring records and explained that the different salaries were based on verifiable past experience in relevant work. Hicks had just nine months of relevant experience, while the two women had between five and 10 years of experience.

The court dismissed the case. The EPA, it explained, allows different pay for essentially the same job if the salary is based on seniority, a merit system, a system that measures earnings by the quality and quantity of production or any factor other than sex. That catch-all provision covers experience, training and the like. (Hicks v. Concorde Career College, No. 10-5275, 6th Cir., 2011)

Final note: Employees seldom win EPA cases against employers that keep good records and can justify any deviations in starting pay with any other factor than sex, whether that is experience, education or something else. Sloppy employers can easily wind up being stung by the EPA.

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